No. 93-659
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
A.C. WARNACK, Trustee of the
A.C. WARNACK TRUST, and
KENNETH R. McDONALD,
Plaintiffs and Respondents,
THE CONEEN FAMILY TRUST; ELK
CANYON ASSOCIATES LIMITED
PARTNERSHIP, a Montana Limited
Partnership, and J. BOWMAN
WILLIAMS,
Defendants and Appellants.
APPEAL FROM: District Court of the Fourteenth Judicial District,
In and for the County of Meagher,
The Honorable Byron L. Robb, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Perry J. Moore & Cindy E. Younkin, Moore, OIConnell
& Refling, Bozeman, Montana (Elk Canyon Ranch Assoc.
& J. Bowman Williams); Patrick F. Hooks, Townsend,
Montana (The Coneen Family Trust)
For Respondents:
John V. Potter, Jr. White Sulphur Springs, Montana
Submitted on Briefs: June 24, 1994
Filed:
Justice James C. Nelson delivered the Opinion of the Court.
This is an appeal from the findings of fact, conclusions of
law, judgment and injunction order of the Fourteenth Judicial
District Court, Meagher County, which, following a bench trial,
awarded Respondents Warnack and McDonald, as well as nonparty
~elvinE. (Bud) Dawson, an easement for various purposes over,
across and through the lands owned by the Appellants. We reverse
and remand for further proceedings consistent with this opinion.
The following issues are raised on appeal:
1 Did the District Court err in granting a prescriptive
.
easement to a nonparty?
2. Did the District Court err in granting a prescriptive
easement to the Plaintiffs/Respondents?
3. Was the prescriptive easement granted overbroad?
Respondents Warnack and McDonald (Respondents) brought this
action, claiming a prescriptive easement over a road which runs
through the lands of Appellants Coneen, Elk Canyon and Williams
(Appellants) . The District Court, following a bench trial on March
22 and 23, 1993, concluded that the Respondents did, indeed, have
a prescriptive easement over the road which runs "from the end of
a county road westerly across state school section 36, then
northwesterly over defendants Elk Canyon, Williams and Coneen to
the south edge of plaintiffs1 premises, then continues
northwesterly across Warnack and another area of Coneen to Bud
Dawsonl land in the Tenderfoot.l1
s The District Court also
described an alternate route over which the Respondents also
claimed a prescriptive easement. The dispute over this latter
route was resolved over the course of this litigation and is no
longer in contention.
The District Court found that there was a prescriptive
easement because the origin of the use of the road remained
ltunexplained. The court stated:
I'
The primary easement claimed by plaintiffs is a
clearly defined and visible roadway which several
witnesses stated they had no trouble following, was
improved over the years for vehicles by Doggetts with
heavy equipment long before Coneen came, was in use well
before the memory of any living witness, and the origins
of that use (whether permissive or adverse) remains
unexplained.
The court further concluded that unexplained use for longer than
the statutory period gave rise to a presumption that the use of the
road was under a claim of right and adverse to the owners of the
land upon which the route was located. Moreover, the court found
that the Appellants acquiesced in the use of the primary easement
by the Respondents. Finally, the court found that the appropriate
uses of the primary easement included:
...use without obstruction [of] the primary access road
by all ordinary modern means for purposes of access to
their lands, construction of residences and outbuildings,
all agricultural purposes, including timber management
and logging, and hunting, fishing, camping and
recreation.
From the above findings, conclusions, judgment and order,
Appellants appeal.
STANDARD OF REVIEW
Our standard of review for conclusions of law by a district
court is whether the tribunal's interpretation of the law is
correct. Public Lands Access v. Boone and Crockett (1993), 259
Mont. 279, 283, 856 P.2d 525, 527. Having concluded that the
District Court erred in its application of the law to this
prescriptive easement case, we decline to address the factual
record established at trial and, instead, remand to the District
Court for reconsideration of its decision in light of the legal
principles set forth in this opinion.
1. NONPARTY EASEMENT
Appellants contend that the District Court erred in granting
an easement to Melvin E. (Bud) Dawson because Dawson was not a
party to the instant litigation. The Respondents merely state that
the finding of a prescriptive easement for the nonparty Dawson was
supported by uncontradicted evidence and that the road in question
provides the only access to the Dawson place.
Dawson was not a party to this action, although he did testify
at the trial and does live within the general area served by the
roadway at issue. Further, Dawson stated that he generally uses a
different road, a logging road, to access his property. Thus, in
the present case, Dawson, a nonparty, was awarded an easement that
he will likely not even use.
Because he is not a party to the action, Dawson cannot be a
party to the judgment. In Moore v. Capitol Gas Corporation (1945),
117 Mont. 148, 156, 158 P.2d 302, 306, we stated:
[I] is a fundamental principle of our jurisprudence
t
that it is only against a party to the action that a
judgment can be taken and that the judgment is not
binding against a stranger to the action.
The same rule pertains where judgment is awarded in favor of a
4
nonparty. See, 46 Am. Jur. 2d Judments, 5 86 at page 373.
Accordingly, we reverse that part of the District Court's judgment
and order which grants a prescriptive easement to Melvin (Bud)
Dawson.
2. EASEMENT TO THE RESPONDENTS
Appellants also contend that the District Court erred in
granting a prescriptive easement to the Respondents based on the
llunexplainedll
use of the roadway for more than the statutory
period. Appellants argue that if a party can be deemed to have
acquired a prescriptive easement merely because the use of the
roadway is wunexplained,ll
then the party "winsw without proof of
any of the elements necessary to establish prescriptive use. The
Respondents counter that Montana law makes it clear that when
Itthroughthe passage of time and beyond the recollection of living
witnesses it becomes impossible to determine whether the initial
use of a roadway was permissive or adverse under claim of right,
the law will presume that initial use was adverse.I1 We agree with
Appellants.
In Montana the general rule as to the establishment of a
prescriptive easement is well settled:
To establish an easement by prescription, the party
claiming an easement "must show open, notorious,
exclusive, adverse, continuous and uninterrupted use of
the easement claimed for the full statutory period ..."
The burden is on the party seeking to establish the
prescriptive easement. I1All elements must be proved in
a case such as this because 'one who has legal title
should not be forced to give up what is rightfully his
without the opportunity to know that his title is in
jeopardy and that he can fight for it.'"
Boone and Crockett, 856 P.2d at 527. (Citations omitted.) "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.I1 Keebler v. Harding
(1991), 247 Mont. 518, 521, 807 P.2d 1354, 1356-1357. (Citation
omitted.) "If the owner shows permissive use, no easement can be
acquired since the theory of prescriptive easement is based on
adverse use." Rathbun v. Robson (1983), 203 Mont. 319, 322, 661
P.2d 850, 852. (Citation omitted.)
It is axiomatic that it is the function of the district court,
and not of this Court to hear the testimony, to resolve conflicts
in the evidence, to judge the credibility of the witnesses and to
determine the facts. According to the District Court, this case
involved 'I... a grab bag of testimony, [mostly imprecise and
relating to events and conversations of 10-50 years ago] so there
was something for every attorney ...I1 Our concern here, however,
is not so much with what testimony or with which witnesses the
court believed, as with the legal principles the court applied to
the evidentiary record in reaching its decision.
While the District Court concluded, as an aside, that
Respondents had proven the elements of adverse possession as
described above, it is equally clear that bearing heavily, if not
primarily, in the court's rationale that Respondents were entitled
to a prescriptive easement over Appellants' lands, was the
proposition that a presumption of claim of right and adverse use
arises by a long, continued I1unexplainedtt
use of the claimed
easement for more than the statutory period and that such
presumption relieves the easement claimant of proving the elements
of prescription. As the court put it:
By reason of .. .
long continued unexplained use of the
primary easement for much longer than the ...
statutory
period ... there arises a legal presumption that the road
use was under a claim of right and adverse to the
respective people whose lands it crossed. This is
sufficient to establish title to the easement by
presumption of a grant if not overcome by a preponderance
of evidence that the use was permissive .. .
Finding of
Fact No. 17.
Where plaintiffs have established a presumption of
adverse use of the primary easement by long unexplained
use as aforementioned, it is not necessary that they
prove all of the elements of adverse possession that
would otherwise be necessary. However, plaintiffs have
done so anyway ...
. Finding of Fact No. 42.
Plaintiffs ...
have proven they are entitled to a
prescriptive road easement along the primary route ...
because of long continued unexplained use for over 70
years ... Conclusion of Law B.
After plaintiffs established the presumption of adverse
use by long continuous unexplained use for more than the
... statutory period ...
it was not necessary for
plaintif is to also prove other elements of adverse
possession, but plaintiffs did so ... Conclusion of Law
D.
This notion -- that a presumption of claim of right and
adverse use arises by long, continued wunexplainedt' use -- so
permeates the District Court's findings of fact and conclusions of
law that we are unable to determine what decision the court might
have otherwise come to on the evidentiary record, had it not so
heavily relied on that proposition -- a proposition which, as we
will hereafter point out, is without legal foundation and is
erroneous.
In fairness to the District Court, that it utilized the
concept of "unexplained" use is understandable given the
inadvertent and improper injection of that term into Montana case
law by virtue of one of our prior decisions and by reason of the
subsequent incorporation of that proposition, as dicta, in other
prescriptive easement cases.
The term "unexplained" use first appears in Montana's
prescriptive easement case law as dicta in Scott v. Weinheimer
(1962), 140 Mont 554, 374 P.2d 91. In that case, after reciting
the general rule that a prescriptive easement is established by a
claimant showing ... open, notorious, exclusive, adverse,
continuous and uninterrupted use of the easement claimed for the
full statutory period ...Iv, the Court then goes on to make the
following statement:
If there has been the use of an alleged easement for ten
years (or five years subsequent to the 1953 amendment
referred to above), unexplained, it will be presumed to
be under a claim of right, and adverse, and will be
sufficient to establish a title by prescription and to
authorize the presumption of a grant. (Emphasis added) .
Scott, 374 P.2d at 95.
As authority for that statement, we cited Te Selle v. Storey
(1957), 133 Mont. 1, 319 P.2d 218. However, as will be pointed out
later in this opinion, our decision in Te Selle never mentioned the
phrase "unexplained use," nor was that case decided by utilizing
that concept.
Importantly, Scott was not decided by application of the
concept of ggunexplainedM
use, but rather on the basis of the well
settled general rule that in order to establish an easement, the
party claiming such right must show open, notorious, exclusive,
adverse, continuous and uninterrupted use of the easement for the
full statutory period.
The testimony by the plaintiff in Scott was to the effect that
he traveled over the road in question without permission, that he
felt he had a legal right to do so, and that he maintained the
road. He also stated that he and his predecessors had used the
road for over 45 years and that it was the only access to his land
and buildings. Scott, 374 P.2d at 94. The defendant's predecessor
in interest testified that the road was continuously used by the
plaintiff and his predecessors; that he never objected to their use
of the road; and that the plaintiffs never asked for permission to
travel the road nor was permission ever granted to use the road.
We concluded that this testimony, in and of itself, westablishe[d]
the fact that the use by the plaintiffs and their predecessors in
interest of the road in question was adverse and without license or
permission." Scott, 374 P.2d at 95. This statement appears as our
conclusion that the elements necessary to prove a prescriptive
easement were established.
However, after referring to the fact that the plaintiffs and
their predecessor in interest used the road for 35 years before the
defendants became the owners of their land, we also stated that,
[tlhis use, unexplained, raises a presumption that it was adverse,
and under a claim of right." Scott, 374 P.2d at 95. (Emphasis
added).
The confusion created by the Scott opinion stems from the fact
that, although this Court stated that the use of the road was
unexplained and that there was no proof that the use was continuous
and uninterrupted, the testimony of the defendant's predecessor in
interest clearly demonstrated that the use of the road was "open,
notorious, exclusive, adverse, continuous and uninterruptedlv for
the full statutory period. Boone and Crockett, 856 P.2d at 527.
Moreover, the testimony of the plaintiff also demonstrated his
use of the road was without permission, under a belief that he had
a legal right to traverse the road, and that it was the only means
of egress and ingress to his land. The dicta regarding
"unexplainedw use of the claimed easement was not pertinent to the
final disposition of Scott as adverse possession was clearly
established by the evidence and on the basis of the general rule.
Furthermore, there was no legal precedent for the inclusion of
the unexplained use concept in Scott. As mentioned above, Scott
cited Te Selle for the proposition that unexplained use of a
claimed easement will give rise to a presumption that the use of
the easement was adverse. However, a careful reading of Te Selle,
an easement case pertaining to the use of a water ditch and water
pipeline, demonstrates that nowhere in that opinion does the phrase
"unexplained use1' appear nor is that proposition in any way
discussed.
Te Selle does refer to the unmolested use of a claimed
easement. Our opinion recites the rule that ''where claimant had
shown open, visible, continuous and unmolested use for the
statutory period, such use will be presumed to be under a claim of
right, and not by license.I1 Te Selle, 319 P.2d at 220. (Emphasis
added). The trial court in Te Selle found that the defendant, his
grantors and predecessors in interest had "been in open, visible,
continuous and unmolested use of a right of way easement to flow
250 inches. ..of water. It Te Selle, 319 P.2d at 219. (Emphasis
added). The defendant testified that no one had molested him in
his use of the water from the ditch or draw for over 20 years. Te
Selle, 319 P.2d at 220. This Court affirmed the district court,
stating that I1[t]he evidence was ample to sustain the finding of
the trial court that defendant had acquired title to the easement
by prescription." Te Selle, 319 P.2d at 221.
Accordingly, Te Selle was concerned with the llunmolestedll
use
of a claimed easement, not the "unexplained" use. Unmolested use
is not the same thing as unexplained use. In fact, in the context
of the general rule and the numerous cases that cite the general
rule, it is clear that unmolested use and uninterrupted use refer
to the same element of prescription. uUninterruptedw means "use
not interrupted by the act of the owner of the land or by voluntary
abandonment by the party claiming the right." Downing v. Grover
(1989), 237 Mont. 172, 176, 772 P.2d 850, 852. On the other hand,
a use which is llunexplainedll simply a use, the origin or
is
continuation of which is undecipherable, unknown or is, otherwise,
without an articulable reason or justification. llUnexplainedlt
cannot be substituted for I1unmolestednor "uninterruptedw in the
elements of the general rule.
Respondents cite Thomas v. Barnum (1984), 211 Mont. 137, 684
P.2d 1106, and Glantz v. Gabel (1922), 66 Mont. 134, 212 P. 858, in
support of the District Court's conclusion that a presumption of
adverse possession arises from long, continuous unexplained use.
Neither of those cases serve as authority for that proposition,
however.
There is no mention whatsoever of unexplained use in Glantz.
That case refers to unmolested use of an easement. Glantz recites
and applies the general rule:
Where the claimant has shown an open, visible,
continuous, and unmolested use of the land of another for
the period of time sufficient to acquire title by adverse
possession, the use will be presumed to be under a claim
of right, and not by license of the owner. In order to
overcome this presumption, thereby saving his title from
the encumbrance of an easement, the burden is upon the
owner to show that the use was permissive. This rule is
sustained by the great weight of authority.
Glantz, 212 P. at 860. (Citations omitted.) (Emphasis added.)
Moreover, the only presumption discussed in Glantz is the
presumption of adverse use which arises from proof of all of the
elements of prescription reauired by the aeneral rule. Immediately
following the statement of the general rule quoted above, the
Glantz court goes on to explain that presumption as follows:
This is a rule of repose. As said by Mr. Justice
Story, in Richard v. Williams, supra:
"Presumptions of this nature are adopted from the
general infirmity of human nature, the difficulty of
preserving muniments of title, and the public policy of
supporting long and uninterrupted possessions. They are
founded upon the consideration, that the facts are such
as could not, according to the ordinary course of human
affairs, occur, unless there was a transmutation of title
to, or an admission of an existing adverse title in, the
party in posses~ion.~
When the claimant's use has thus been open, visible,
continuous, unmolested, and under a claim of right, the
corollary is that it has been adverse to the owner. ...
Glantz, 212 P. at 860. (Citations omitted.)
Glantz does not state that a presumption arises from
"unexplainedw use. Accordingly, Glantz is not properly cited for
the proposition that unexplained use of a claimed easement gives
rise to a presumption of claim of right and adverse use.
Thomas, on the other hand, does refer to wunexplainedv'use.
However, like Scott, it does so only after first reciting the
general rule (quoted from Taylor v. Petranek (1977), 173 Mont. 433,
568 P.2d 120), that a prescriptive easement is established by the
claimant showing open, notorious, exclusive, adverse, continuous
and uninterrupted use of the easement for the full statutory
period. Thomas, 684 P.2d at 1110. Thomas then continues with the
following statement:
I1To 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. White v. Kamps [I19 Mont. 102, 171 P.2d
3431. If there has been use of an allesed easement for
the full statutory period, unexplained, it will be
presumed to be under a claim of risht, and adverse, and
will be sufficient to establish a title bv resumption of
a arant. Scott v. Weinheimer, supra; Te Selle v. Storey,
133 Mont. 1, 319 P.2d 218; Glantz v. Gabel, 66 Mont 134,
141, 212 P.2d 858. This presumption exists to overcome
"* * * the general infirmity of human nature, the
difficulty of preserving the muniments of title * * * " I
and to promote public policy of supporting long and
uninterrupted possessions...It (Citing Glantz) (Emphasis
in quote from Thomas.)
Thomas, 684 P.2d at 1110.
While the Thomas court correctly quotes the dicta referring to
wunexplainedll
use from Scott, as pointed out above, the use of the
word llunexplainedl' that case was without precedent, inadvertent
in
and had nothing to do with the facts or disposition of that case.
Similarly, the Thomas quote's citations to Te Selle and Glantz are
improper as neither of those cases even refer to the concept of
llunexplainedll
use. Finally, as the actual passages from Glantz
quoted earlier in this opinion clearly demonstrate, the
"presumptionw referred to in the quote from Thomas refers, not to
a presumption of adverse use from I1unexplainedt1 as Thomas leads
use
the reader to believe, but, rather, to a presumption of adverse use
which arises from proof of all of the elements of prescription
under the general rule. Glantz, 212 P. at 860. Under the
circumstances, the above passage from Thomas cannot stand as
authority for the proposition that a presumption of claim of right
and adverse use arises from "unexplained" use.
That passage from Thomas aside, a review of our decision,
nevertheless, demonstrates that there actually was no issue as to
an unexplained use of the claimed easement in that case. We
concluded that I1[t]he testimony of Thomas, Meuli and Wilhelm
supports the trial court's finding that use of the road was open,
notorious, exclusive, adverse, continuous and uninterrupted for all
the years leading up to the current dispute.11 Thomas, 684 P.2d at
1110. The opinion also states that permission to use the road was
never sought and that Barnum, himself, "personally acquiesced in
the use of the road by area residents who believed they could
travel it under a claim of right." Thomas, 684 P.2d at 1110.
Accordingly, there was ample evidence in Thomas that the use of the
road was adverse, not unexplained, and that all elements necessary
to establish a prescriptive easement under the general rule had
been proven. Thomas, therefore, provides no authority for the
proposition that an unexplained use of a claimed easement gives
rise to a presumption of adverse use.
Similarly, a review of easement cases decided since Scott
which have either cited Scott or have referred to the concept of
unexplained use as giving rise to a presumption of claim of right
and adverse use, reveals that any mention of unexplained use was,
in actuality, superfluous to the final disposition of the
prescription issue. In each case, there was sufficient evidence to
prove either adverse or permissive use of the claimed easements in
question under the general rule. See, Lunceford v. Trenk (1974),
163 Mont. 504, 518 P.2d 266; Harland v. Anderson (1976), 169 Mont.
447, 548 P.2d 613; Taylor v. Petranek (1977), 173 Mont. 433, 568
P.2d 120; Yecny v. Day (1977), 174 Mont. 442, 571 P.2d 386; Hayden
v. Snowden (1978), 176 Mont. 169, 576 P.2d 1115; Johnson v.
McMillan (1989), 238 Mont. 393, 778 P.2d 395; Granite County v.
Kornberec (1990), 245 Mont. 252, 800 P.2d 166; Murray v. Countryman
Creek Ranch (1992), 254 Mont. 432, 838 P.2d 431.
Finally, the establishment of a prescriptive easement by
munexplainedwuse is without sound legal basis in any event. It is
fundamental that in order to establish a prescriptive easement, the
claimant I1mustshow open, notorious, exclusive, adverse, continuous
and uninterrupted use of the easement claimed for the full
statutory period." Boone and Crockett, 856 P.2d at 527. (Emphasis
added.) use does &
An easement established by llunexplainedNt
fulfill the requirement that the easement claimant bear the burden
of provinq the elements of prescription -- .
i e. open, notorious,
exclusive, adverse, continuous and uninterrupted use of the
easement for the full statutory period.
"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." Keebler, 807 P.2d at 1356-1357. (Emphasis added.) A use
tlunexplainedwis, in fact, the antithesis of the rule requiring
proof of the elements of prescription. In effect, by proving
nothing, the claimant proves everything.
Moreover, if the use of the easement is truly t~unexplained,w
there is no way in which the court can determine the character and
scope of the easement during the prescriptive period so as to apply
the rule, referred to in our discussion of Issue 3, that the use of
the roadway cannot exceed the use which the easement claimants made
of it during the prescriptive period. See also, State v. Portmann,
(1967), 149 Mont. 91, 96, 423 P.2d 56, 58: ll[R]ights acquired by
adverse use can never exceed the greatest use made of the land for
the full prescriptive period.I1
We can only surmise that Scott inadvertently misquoted Te
Selle by substituting the word wunexplained" for l'unmolestedw and,
in so doing, created the legal error, perpetuated in subsequent
cases, which we now find necessary to correct. We hold that a
prescriptive easement cannot be established through "unexplainedw
use of the road or trail in question; the requisite elements for
establishing a prescriptive easement must be proved by the claimant
-- i.e. that the use is an open, notorious, exclusive, adverse,
continuous and uninterrupted (unmolested) use of the easement
claimed for the full statutory period. Each of those elements is
a term of art, defined in our prior cases. See, Rappold v.
Durocher (1993), 257 Mont. 329, 332, 849 P.2d 1017, 1019.
The fact that the origin and early use of the road or trail
may be lost in history or is beyond the recollection of witnesses,
does not negate the obligation of the easement claimant to prove
the elements of prescription. In this regard it should be
remembered that the claimant need only prove the elements of
prescription for the full statutory period, not for the entire
existence of the roadway or trail at issue.
Moreover, our decision on this issue mandates that Scott and
its progeny be overruled to the extent that those cases stand for
the proposition that a prescriptive easement may be established by
merely showing the long, continued unexplained use of a road or
trail for the statutory period; to the extent that those cases
stand for the proposition that a presumption of claim of right and
adverse use arises from long, continued wunexplainedv use; and to
the extent that such presumption negates an easement claimant's
burden of proving the elements of prescription.
While a presumption of adverse use or adversity arises once
the claimant establishes open, notorious, exclusive, continuous,
and uninterrupted (unmolested) use for the full statutory ~eriod,
(see Glantz, 212 P. at 860, and Rappold, 849 P.2d at 1020), it
remains the burden of the easement claimant to prove each of those
remaining elements of prescription, and unless and until the
claimant proves those elements under the general rule, the burden
does not shift to the land owner to prove permissive use or
license. Rappold, 849 P.2d at 1020.
As pointed out above, adverse use or adversity simply refers
to the requirement that the 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 and that such claim must be
known to, and acquiesced in by the owner of the land. Keebler, 807
P.2d at 1356-1357. Given that definition, it logically follows
that adverse use or adversity will, in most instances, be proven
from the same evidence by which easement claimant establishes his
open, notorious, exclusive, continuous and uninterrupted
(unmolested) use of the easement for the full statutory period.
Adverse use or adversity cannot, however, be presumed from the
claimant's inability to prove those remaining elements of
prescription; if those elements are not proven, then the
presumption of adverse use or adversity never springs into
existence. Adverse use or adversity will not be presumed from
"unexplainedn use.
In the instant case, while the District Court concluded, as an
aside, that Respondents had proven the elements of adverse
possession, it is also clear that the court relied heavily on our
statements regarding unexplained use in Scott and its progeny, and
that the erroneous application of that concept to the evidentiary
record significantly influenced the court's decision. Under the
circumstances, it is appropriate that the District Court reconsider
its decision on this issue and apply the correct legal principles
set forth in this opinion to the evidentiary record established at
trial. Accordingly, we reverse and remand for further proceedings
In its conclusions of law, the District Court stated:
The rights of plaintiffs, their heirs, successors,
assigns and agents to use said primary road easement
should be on foot, horseback, and all ordinary modern
means of transportation for purposes of access to their
lands, construction of residences and outbuildings, all
agricultural purposes, including but not limited to
timber management and logging, and hunting, fishing,
camping and recreation. However, none of the parties
should be prohibited from placing unlocked gates or
cattleguards on their property boundaries to confine
livestock.
The Appellants contend that the easement granted by the
District Court was overbroad and far exceeds the character and
extent of the use of the claimed easement during the prescriptive
period. The Respondents answer that the evidence supports the
District Court Is finding as to the scope of the easement. Since we
are remanding this case to the District Court for its
reconsideration of whether, on application of the correct law to
the evidentiary record established at trial, there exists a
prescriptive easement in favor of the Respondents, we decline to
address the merits of this issue.
For the guidance of the District Court on remand, however, we
note that if the court determines that the Respondents have met
their burden of proof and have established a prescriptive easement
over the lands of the Appellants, the court must then determine the
appropriate scope and extent of the easement under the following
rule:
It is settled law in Montana that in acquiring a
prescriptive easement, "the right of the owner of the
dominant estate is governed by the character and extent
of the use during the period requisite to acquire it."
Marta v. Smith (1981), 191 Mont. 179, 183, 622 P.2d 1011, 1013.
(Citation omitted.) The Marta court went on to state,
I' [tlherefore, Martas' use of the roadway cannot exceed the use
which they made of it during the prescriptive period.I1 Marta, 622
P.2d at 1013. (Citations omitted.)
The District Court must carefully evaluate the prior use of
the roadway and, applying the above stated rule, limit the scope
and extent of any easement found to have been established to the
use made of it during the prescriptive period.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH
THIS OPINION.